6.  The applicants were born in 1989 and 1984 respectively. They are currently serving prison terms in the Dubnica nad Váhom and Hrnčiarovce nad Parnou Prisons, respectively.
7.  On 4 August 2009 a criminal investigation was opened into suspected trafficking in drugs within the meaning of Article 172 § 1 (c) of the Criminal Code (Law no. 300/2005 Coll., as amended – “the CC”), an offence with which the applicants would later be charged. The offence was considered an ordinary criminal offence (zločin), which carried a penalty of four to ten years’ imprisonment and did not require mandatory legal assistance.
8.  On 4 November 2009 a warrant was issued for the search of non‑residential premises situated in a factory complex, which the applicants were renting and using as a music studio.
9.  At 6.10 p.m. on 7 November 2009 the warrant was served on the second applicant on the premises. The search was then carried out by the police between 6.30 p.m. and 7.40 p.m.
According to the search report, the police seized a pair of digital scales, various items used for the consumption and packaging of drugs, and what would later be established to be 11.724 grams of cannabis.
No lawyer representing the applicants or any other of the parties concerned was present.
10.  The police also found the first applicant and four other individuals on the premises.
11.  At 6.40 p.m. the applicants were taken to the police station (predvedení) where it was decided that they would be detained and subsequently questioned by the police as suspects (podozriví). The first applicant was thus detained at 9.15 p.m. the same day, while the second applicant was detained at 1.10 a.m. the following day.
No lawyer was involved on behalf of the applicants.
12.  The questioning of the first applicant took place between 9.30 p.m. and 10.45 p.m. the same day and that of the second applicant between 1.10 a.m. and 2.00 a.m. the following day.
13.  The applicants’ police statements were transcribed on pre-printed forms, the relevant part of which was filled in to indicate, inter alia, that the applicants were suspected of trafficking in drugs within the meaning of Article 171 §§ 1 and 2 of the CC.
On the first page of the forms there was a pre-printed message stating, inter alia, that the person being questioned had the right to remain silent and the right to choose a lawyer. That page, as well as the subsequent pages, was signed by the applicants.
The applicants made their statements without a lawyer and the transcript contains no mention of the issue of legal representation.
14.  In his statement, the first applicant described his arrangement with the second applicant concerning the sale to third parties of cannabis sourced by the second applicant and their profit sharing. He identified five individuals as his customers and described how he was selling the drug to them and what he was doing with the profit.
15.  The second applicant’s statement was along the same lines, except that he identified three individuals as his customers and added that cannabis had been smoked on the premises by all those present before the arrival of the police.
16.  Around the same time, the police also questioned as witnesses the other four individuals found on the premises. No lawyer for the applicants or those four individuals was present at the questioning. Two of those individuals, A. and B., gave statements incriminating the applicants.
17.  On 8 November 2009 the applicants were charged with conspiracy to possess and traffic in drugs within the meaning of Article 20 § 1 and Article 172 § 1 (c) and (d) of the CC. The parameters of the offence were in line with those of the offence into which a criminal investigation had previously been opened (see paragraph 7 above).
18.  The document containing the charge relied on the results of what was termed a “preliminary expert analysis” of the material seized (see paragraph 9 above) and the police statements of the applicants and the four other individuals questioned. It was observed that the applicants had been engaging in the illicit conduct “from the beginning of summer 2009 until the present” and that the number of their customers had not yet been established.
19.  Following the bringing of charges against the applicants, they were again questioned by the police, this time as accused (obvinení).
20.  Neither applicant was assisted by counsel. Their statements were transcribed on a pre-printed form, which contained a pre-printed message stating, inter alia, that the person being questioned had the right to remain silent and the right to choose a lawyer. That page, as well as all the other pages of the document, was signed by the applicants.
21.  According to the transcript, the first applicant stated that he waived his right to study the investigation file and his right to appeal against the charges. He made a confession in general terms and conceded that the evidence on which the charge against him was based was accurate. He also declared that he had no wish to appoint a lawyer; that he had been selling the drug because he was unemployed; that he regretted his actions; and that, if released, he would stop selling the drug and limit himself to its consumption.
22.  As for the second applicant, according to the transcript he stated that he waived his right to appeal against the charges and maintained his previous statements in full (see paragraph 15 above). He made a confession in general terms, conceded that the elements on which the charge against him was based were true, and expressed his remorse.
He also declared that he did not wish to appoint a lawyer; he had been selling the drug because he had lost his job; he was willing to cooperate with the authorities; he would not flee; and he would be prepared to enter into a plea bargain.
23.  On 9 November 2009 the applicants were brought before a judge of the Martin District Court (Okresný súd) to be heard in connection with the request by the public prosecution service (“the PPS”) that they be remanded in custody.
24.  According to the minutes of those hearings, both applicants stated that they had neither appointed a lawyer nor had any wish to appoint one.
In addition, the second applicant submitted that he had commenced the trafficking in the summer of that year, that the drugs found on the premises had belonged to him and the first applicant. He said that he was sorry for his wrongdoing and was ready to cooperate with the authorities.
The first applicant, for his part, admitted possessing the quantities of cannabis as established by the police. He had been trafficking in it since April 2009, taking on average ten bags every three days from the second applicant, selling it and keeping the profit of some 15-20 euros every three days.
25.  At the conclusion of their respective hearings on 9 November 2009, the applicants were remanded in custody pending trial on the ground that, if left at liberty, they might continue their criminal activities within the meaning of Article 71 § 1 (c) of the Code of Criminal Procedure (Law no. 401/2005 Coll., as amended – “the CCP”). Following an appeal lodged by the second applicant, the decision to remand him in custody was upheld by the Žilina Regional Court (Krajský súd) on 24 November 2009.
26.  By virtue of the applicants being remanded in custody, it became mandatory for them to be assisted by a lawyer under Article 37 § 1 (a) of the CCP.
27.  On 11 November 2009 the applicants’ respective mothers appointed a lawyer to represent them in the proceedings. The applicants endorsed that appointment on 13 November 2009.
28.  On 2 December 2009 the applicants’ lawyer inspected the investigation file.
29.  On 9 December 2009 the police questioned the applicants again. Assisted by their lawyer, they submitted that they wished to avail themselves of their right to remain silent.
Nevertheless, the first applicant added that when he had been questioned on 8 and 9 November 2009 and had confessed and expressed remorse, he had already stated everything he considered relevant. In a similar fashion, the second applicant referred to his confession of 8 November 2009 and stated that he had made it without any pressure and that he had not been under the influence of psychotropic substances.
30.  On 22 December 2009 the police heard A., B., and eight other witnesses in the presence of the applicants’ lawyer. The depositions of A. and B. as well as of C. and D. may be understood as incriminating the applicants.
31.  On 27 January 2010 the first applicant’s mother appointed a new lawyer to represent him in the proceedings. The first applicant then dismissed his first lawyer. The second applicant’s father appointed the same lawyer for his son on 12 February 2010.
32.  Meanwhile, by letters of 29 January and 16 February 2010, the investigator had informed the applicants that, on the basis of information obtained during the investigation, the charge against them would be reclassified as an aggravated form of the same offence within the meaning of Article 172 § 2 (c) of the CC. That provision applied to instances where the offence had been committed “in a more serious manner”. Such an aggravated form of the offence carried a penalty of imprisonment for ten to fifteen years and, as such, it amounted to a particularly serious criminal offence (obzvlášť závažný zločin). Such a charge required mandatory legal assistance under Article 37 § 1 (c) of the CCP.
33.  On 16 and 23 February and 5 March 2010 the police heard five more witnesses in the presence of the applicants’ lawyer. Of their depositions, those of a certain E. may be understood as incriminating the first applicant.
34.  On 8 March 2010 the investigator informed the applicants’ lawyer that she rejected his proposals for further evidence to be taken consisting of face-to-face interviews (konfrontácia) between the first applicant and witnesses A. to E. She considered that, on the relevant points, there had been no discrepancies between the accounts of the applicants and those of the witnesses named. She referred to Article 138 (b) and (j) of the CC, which provided that an offence was deemed to have been committed in “a more serious manner” if it had been committed “over a longer period of time” or perpetrated against “several persons”. The term “several persons” was in turn defined in Article 127 § 12 of the CC as at least three persons. The investigator observed that the submissions of both the applicants and the witnesses in question had indicated that the offence had been committed over a period of at least five months and perpetrated against several persons.
35.  On 22 March 2010 the applicants’ lawyer inspected the investigation file together with the first applicant.
36.  On 29 March 2010, acting in their name, the applicants’ lawyer requested that a plea bargain procedure be initiated. In his request, he referred to the original charge, the decision to reclassify it to the aggravated form of that charge, and the applicants’ confessions in their interviews by the police. It was added that the applicants were aware of the wrongfulness of their behaviour and were sorry for it.
37.  On 27 April 2010 the applicants met with the PPS for the purposes of negotiating the plea bargain. However, they stated at the outset of the meeting that, having consulted with their counsel, they no longer wished to pursue the matter.
38.  On 4 May 2010 the applicants were indicted to stand trial on the aggravated charge before the District Court.
The indictment was based on the statements the applicants had made on 7, 8 and 9 November 2009, the results of the search of 7 November 2009, an expert analysis of the material seized during the search, and – without any indication of the dates when they had been made – statements from five witnesses, A. to E. It was also noted that the applicants each had a previous conviction: the first applicant for robbery, for which he had been sentenced to five months’ imprisonment suspended for a year; and the second applicant for fraud, for which he had been sentenced to two years’ imprisonment suspended for two years.
39.  The District Court heard the case on 17 August, 31 August, 19 October and 23 November 2010.
40.  On 7 December 2010 the court found the applicants guilty and sentenced them to six years and eight months imprisonment.
It observed that the applicants had pleaded not guilty before the court, arguing that they had merely consumed the drug but had not been selling it. As to the discrepancy between that version and the version submitted by them in their pre-trial statements of 7, 8 and 9 November 2009, the applicants had submitted before the court that the pre-trial questioning had been conducted in a manipulative fashion and the police had coerced them by promising that they would not be remanded in custody. In addition, the second applicant had submitted that, in the initial questionings, he had still been under the influence of the cannabis he had consumed earlier.
The District Court observed further that the five prosecution witnesses had also changed their testimony before it as compared with their statements made in the pre-trial phase, in that, before the court, they had given no evidence incriminating the applicants.
In so far as the applicants and those witnesses had sought to explain the discrepancies in their versions by alleging that they had been put under pressure by the police at the pre-trial stage, the District Court heard the officers in question and dismissed the allegation as unfounded.
41.  The applicants lodged an appeal (odvolanie), as did the PPS, against the District Court’s decision. The applicants subsequently also appealed on points of law (dovolanie). Their line of argument may be summarised as follows.
42.  In addition to the arguments already presented, they objected that the record of the search of 7 November 2011 was vague, in particular as to the quantity and content of the dried material that had been seized.
Furthermore, they claimed that, during the questioning sessions of 7 and 8 November 2009, they had not been properly informed of their procedural rights, including the rights to remain silent and to choose a lawyer. Their signatures on the relevant pages of the pre‑printed forms on which the statements had been transcribed were of no relevance – in particular given that there was no mention of their having been informed of those rights in the transcript.
Those statements had thus been made contrary to the applicable procedural rules. As they were the basis for the decisions to charge and detain them, their trial had taken an unlawful course from the very outset.
In addition, there had been no relevant grounds – for example a substantial change in the evidence – to justify the reclassification of the charge against them from an ordinary criminal offence to a particularly serious criminal offence. Therefore, in the applicants’ submission, from the beginning the charge against them had actually been that of a particularly serious criminal offence, in which case legal assistance should have been mandatory. The fact that they had not been informed accordingly at the critical initial stages of the proceedings had had a fatal and irreversible impact on the choice of their defence strategy and had in practice negated their defence rights. This had been manifested, inter alia, in that they had been remanded in custody without having appointed a lawyer.
Moreover, a number of further pieces of evidence originating from the pre-trial stage of the proceedings, in particular the witness statements, had also been manipulated. The court should therefore have examined only the evidence taken during the trial and refrained from taking into account the pre-trial statements of the witnesses.
43.  The PPS challenged the sentence handed down by the first-instance court on the grounds that they saw no reason for imposing a sentence below the lower end of the penalty scale.
44.  In a judgment of 9 March 2011 the Regional Court quashed the judgment of 7 December 2010; adjusted the District Court’s findings of fact as to the applicants’ conduct which formed the basis of the offence; found them guilty of the offence in its aggravated form; and sentenced them each to ten years’ imprisonment. Subsequently, on 10 November 2011, the Supreme Court (Najvyšší súd) declared the applicants’ appeal on points of law inadmissible. The relevant part of the reasoning of both courts may be summarised as follows.
45.  It was acknowledged that it had been an error for the District Court to take into account the applicants’ pre-trial statements of 7 and 8 November 2009, respectively, when they had been questioned as suspects prior to being charged. Those statements therefore did not constitute lawful evidence and had to be excluded.
However, the applicants’ statements of 8 November 2009 when, having already been charged, they had made a confession in general terms, and their further statements taken on 9 November 2009, which contained a more specific confession, could be taken into account, as could the evidence from the five prosecution witnesses.
46.  On 9 January 2012 the applicants lodged a complaint under Article 127 of the Constitution (Constitutional law no. 460/1993 Coll., as amended) with the Constitutional Court (Ústavný súd), advancing essentially the same arguments as mentioned above, and alleging that their rights to liberty and a fair trial had been violated.
47.  On 15 February 2012 the Constitutional Court declared the complaint inadmissible. In so far as it was directed against the Regional Court and the Supreme Court, the Constitutional Court rejected the complaint as manifestly ill-founded, quoting extensively from the contested decisions and endorsing them. The Constitutional Court found that the remainder of the complaint was outside its jurisdiction.
The Constitutional Court’s decision was served on the applicants on 9 March 2012.